Rowley v. Stoddard , 7 Johns. 207 ( 1810 )

Thompson, J.

delivered the opinion of the court. It is a well settled rule, that a release to one of several obligors, whether they are bound jointly, or jointly and severally, discharges the others, and may be pleaded in bar. (Co. Litt. 232. a. and note 144. 2 Saund. 48. a. But where two are bound jointly and severally, and the obligee covenants with one of the obligors only, not to sue him, it does not amount to a release, but is a covenant only, and the obligee may still sue the other obligor. (8 Term Rep. 171.) The settlement made in the case before us, is somewhat in the nature of an agreement lease under seal is necessary to be given to one of several debtors, in order that the others may avail themselves of it as a discharge. In the case of Fitch v. Sutton, (5 East, 232.) Lord Ellenborough says, it cannot be pretended that a receipt for part only, though expressed to be in full of. all demands, must have the same operation as a release. The same doctrine is fully recognised by this court, in the case of Harrison v. Close and Wilcox, (2 Johns. Rep. 449.) in which it appeared, that the defendants having given the plaintiff a joint and several promissory note for 71 dollars, the plaintiff agreed with one of them, if he would pay him 21 dollars and 55 cents, he would not call on him for payment of the note, but would look to the other defendant for the residue. , The 21 dollars and 55 cents were paid, but this was held not to be a satisfaction of the note, nor a bar to the plain-1 tiff’s action. These authorities - are sufficient to show that, the receipt given by the plaintiff forms no objection, to the present action. not to prosecute the elder Stoddard./ But a technical re-

The appearance of the elder Stoddard to the suit' commenced against him in Vermont, cured" all irregularity, if any had been committed, in the commencement of the suit, on account of his not being within the state. The other questions, suggested on the argument, were matters of fact submitted to the jury. The promise of the younger Stoddard, after he came of age, was sufficient to remove every objection on the ground of infancy, if that promise applied to the note, which in the opinion of the jury it did. And to what amount payments had been made, was to be determined between the evidence of Stewart, on the part of the defendant, and the testimony furnished by the appraisement of the wheat attached in Vermont. The jury, by their vejdict, have adopted the latter, which was perhaps the most correct ; at all events, it was a proper subject for their determination.

The motion for a new trial must, therefore, be denied,,